Hopefully the Democrat Party will be successful this election cycle. In order to not look like more of the same, the Democrat Party needs to take an aggressive role addressing many of the issues of such concern to the public. If the president vetoes new legislation, let him face the public to explain why he did it, and why it was in the best interest of the people.
Below is a list of significant items that should be passed immediately, work should begin immediately after the election:
- Establish hearings to figue out how the hell to get us out of Iraq the best way possible.
- A substantial increase in the minimum wage, to $7.50 per hour in one jump.
- Repeal of tax benefits given to the oil industry.
- Implementation of 911 Commission Report
- Repeal of authorization to torture and wire tap without warrant.
- SEVERE limitation on or total elimination of lobbyists.
- Revision of Bankruptcy Laws written by the Credit Card companies to undo damage.
- Revision of prescription drug coverage program.
- Build the fence on the southern border, where required, but do not criminalize undocumented aliens. Let the crazy's know that you are serious about stopping the flow of the illegals and buy time to develop a sensible strategy for dealing with those that are already here.
- To the extent possible, set aside no bid contracts and demand accountability for the expenditures.
- Set up blue ribbon panel to investigate methods of reducing dependence on foreign oil, emphasizing reliance upon renewable resources. (and then implement it)
- Eliminate the use of mercenaries in Iraq.
- To the extent possible, delete pork from previous appropriations including the bridge to nowhere.
- Roll back tax cuts to those with incomes over 300,000 per year.
- Pass more realistic and sweeping stem cell research legislation.
- Shore up concerns over e-voting.
It is also important that the Democrats not fall into the same trap as the Republicans in stifling debate, we should be better than them and should be perceived as being so by the electorate. While it is good to hold people accountable for their actions, particularly signing statements, it must not be perceived as the Democrats punishing Bush at the expense of cleaning up the mess or making real legislative progress.
PASS THE LEGISLATION. If Bush wants to veto it, let him do it and be held responsible for his actions.
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Comments: 47
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we can save on building the fence, since bush is getting us into this north american union.
(President Clinton worked with the Republican-led Congress to enact welfare reform. As a result, welfare rolls dropped dramatically and were the lowest since 1969. Between January 1993 and September of 1999, the number of welfare recipients dropped by 7.5 million (a 53 percent decline) to 6.6 million. In comparison, between 1981-1992, the number of welfare recipients increased by 2.5 million (a 22 percent increase) to 13.6 million people.[22]
Why hasn't President Bush been able to....its his party!!!!!!
And if the Democrats will directly address a question with a straight answer...they will be in like flin....no blaming or shaming in their campaignin.................!!!!!
We really need some work on homeland security (ports, transportation, policing, communications, ...); rebuilding cities, like New Orleans; healthcare... Perhaps we can see a return to a higher level statesmanship and civility in Congress than we have seen in the last dozen years or so.
The Republicans have had 12 years. It just didn't work. We need a shake up.
Which ones don't?
Enacting the recommendations of the 911 Commission?
Eliminating Lobyists?
Addressing illegal immigration?
Holding real debates and hearings where input is actually sought?
Probibiting torture?
Requiring compliance with constitutional requirements for a warrant for a wire tap?
Removing subsidies from oil companies?
Making the rich pay their fair share?
Removing tax incentives for corporations taking US jobs overseas?
Eliminating reliance of foreign oil that funds islamic extremeists?
Allowing the government to reduce drug costs by allowing negotiation?
Removing pork from the budget?
Making no bid contractors accountable?
Raising the minimum wage to allow a worker to earn enough in a day to pay for a tank of gas?
I hate to think what you think would be good for the country.
According to Pelosi, Reid, Rangel and others, the list looks like this, in no special order -
Unfund the military in Iraq and support for Iraq and hope that it doesn't result in 2 million plus deaths like it did we Dems unfunded Vietnam. This is Rangel's pet project as Chairman of Ways and Means.
Repeal the Patriot Act and stop the NSA program and any other programs which allow us to "connect the dots" in order to respect the rights of jihadists and other terrorists.
"Jump-start our economy and reform our economic policy .. to address teh needs of working families." This is from Pelosi. One of the elements of this plan is to let the Bush tax cuts expire in order to raise taxes back to the levels of the Clinton administration. A few more parts of this plan follow.
Raise the minimum wage in order to satisfy unions since the working poor will vote for Dems anyway even though it will hurt them and those with the fewest skills and the least education.
Impose new regulations across the economy on everything from energy to broadband, punishing the industries Dems don't like and subsidizing those they do.
Do nothing to stop the growth of entitlement spending that will start to engulf the treasury in 2009.
Pass legislation to allow same sex marriage.
Impeach Bush and Cheney in order to make Pelosi president.
Have I left out anything which are planned by the various Democrat leaders?
Best regards, Ben
Author "Leading People to be Highly Motivated and Committed"
The idea of putting people like John Conyers in power and wasting Congressional time on impeachment appeals only to the far left, and even Conyers has been ordered to stop talking about it.
If the Democrats are serious about taking the House, they need to agree on a serious legislative agenda and then commit to passing it, if elected. America believed the House Republicans in '94. The '06 Democrats haven't given them anything to believe in except impeachment.
"Unfund the military in Iraq and support for Iraq and hope that it doesn't result in 2 million plus deaths like it did we [sic] Dems unfunded Vietnam." This is the kind of GOP BS that has characterized the past six years. You throw up an unrealistic comparison and then claim that is the only choice. It is time for an honest and open discussion, with full participation by the military, to figure a way to get out of this mess that Bush got us into under false pretenses. We are trying to maintain order in the middle of a civil war. There is no clear best way to extricate ourselves from this morass. We need to find that way.
"Repeal the Patriot Act and stop the NSA program and any other programs which allow us to "connect the dots" in order to respect the rights of jihadists and other terrorists." - This is the same crap. Wanting the administration to abide by the constitution does not mean throw out the entire Patriot Act. They can go to the FISA Court and get a warrant, even after the fact. We should not give up our constitutional rights, so dearly purchased, out of fear.
"Raise the minimum wage in order to satisfy unions since the working poor will vote for Dems anyway even though it will hurt them and those with the fewest skills and the least education." - Do you think it is wrong for someone to be able to earn enough in a day to be able to buy a tank of gas? The argument about raising the minimum wage hurting the poor is specious.
"Impose new regulations across the economy on everything from energy to broadband" - It is the republicans that are seeking to regulate broadband and the internet, not the Democrats. The Democrats recognize that free and open communications are essential to maintaining the democracy.
"Do nothing to stop the growth of entitlement spending that will start to engulf the treasury in 2009." - Are you serious. The Republicans have broken the bank with their reckless spending, much of in earmarks to pay off political allies. I think that earmarks should be eliminated and to the extent possible, the pork packed into the current budget should be unfunded. The Republican party has strayed so far from the party of fiscal conservatism that it is no longer recognizable. You may be in denial but the Democrats are now more fiscally responsible than the Republicans. There is still a philosophical difference though, the Democrats would prefer to spend money on improving the quality of life for Americans and the Republicans would rather spend money bombing others into submission or making the very rich more rich.
"Pass legislation to allow same sex marriage." - I didn't see this in my list. But since you want to bring forth this wedge issue I will briefly discuss it. When I was younger, the Republican party was one who felt that government should not intrude in their private life. In 1980 the Republican party was hijacked by the "religious" right. The Republican party that previously sought to prevent intrusion of the government into the private lives of the people now seeks to impose the views of the religious fringe on the rest of the country. If you don't want to enter into a gay marriage don't do it. Gay marriage will not endanger the institution of marriage in this country. I haven't seen it happen in Canada or other countries where it is permitted. What it does do is to encourage those who happen to be gay to enter into a committed relationship with the same tax consequences and legal rights over medical decisions for their partners that other couples enjoy. If you think that gay marriage will somehow make your son gay, you seriously underestimate the power of the female brest.
"Impeach Bush and Cheney in order to make Pelosi president." – While Bush has undoubtedly committed impeachable offenses and has done grave damage to the constitution, I do not feel that it is worth the wasted time and effort to pursue impeachment proceedings. The people want the country fixed.
If impeachment for lying about a blow job is an imeachable offense, lying about going into war certainly is. That being said, I believe that the Democrats will show that they are "bigger" than the Republican Party and will work on fixing the PROBLEMS rather than the BLAME.
1) it's only a democrat spin that Bush doesn't have a plan-- Congress is already doing what you suggest, perhaps not in the manner YOU or a democrat would do it, but it's already being done.
2) Why not raise it to $15.00 ?? I mean, is $7.50 a "living wage" ?? Can you "raise a family" on $7.50 ?? If you really want to be "fair" just double or triple your number and tell us your REAL agenda so we can laugh openly.
3) Pepsi just reported a 71% gain in profits for a single quarter--- are you going to repeal the benefits Pepsi receives as well? The fact is, for every gallon of gasoline sold the GOVERNMENT collects more money for that gallon than the refineries that brought it to market. Your class warfare is silly.
4) The 911 Commission was a joke, they know it, you know it, we know it.
5) Unless you plan on altering the Constitution itself, Congress cannot legislate away INHERENT PRESIDENTIAL POWERS, So the wiretapping thing is moot, and Congress certainly didn't "authorize torture."
6) Exactly HOW would you eliminate lobbyists? It sure sounds nice, but HOW?
7) Deadbeats should pay their bills, plain and simple.
8) Why are democrats always ready to give away the store, unless the republicans are doing the giving?
9) the idea of a fence is about as stupid as it gets, and it doesn't matter if it's a republican or a democrat spewing the nonsense.
10) no bid contracts exist for a reason, usually expedience in servicing a crisis. In most instances, there is no one else that could reasonably bid on the project, and actually complete the job. Very few companies do what a company such as Halliburton does, which is exactly who you are probably talking about.
11) Oil isn't going anywhere anytime soon, and why should it? New discoveries are found every day it seems. So called "known reserves" are projected upward year after year. There "known reserves" in Saudi Arabia for instance are higher now than they've ever been in the past, though we've supposedly been pumping the desert dry for over a half century now.
12) The "mercenaries" you speak of are hired by PRIVATE COMPANIES that are trying to do business in Iraq. Are you suggesting taxpayer dollars should be protecting PRIVATE INTERESTS ???
13) Pork is what makes politics work, scratch my back and I'll scratch yours mentality. Grow up and deal with reality.
14) The top 10% of the wage earners in this country are already paying the VAST MAJORITY of all federal income taxes, you know, the taxes you call the "Bush tax cuts." Do some research and you'll see the reduction in taxes INCREASED TAX RECEIPTS, so why would you want to raise taxes and lower receipts?
15) I have to assume you mean FETAL stem cell research because there is ample research being done in adult stem cells. Why adult stem cells and not fetal? Because NOT ONE scientific advance has been offered from fetal stem cell research, while adult stem cells have yielded COUNTLESS advances.
16) Concerns over eVoting are little more than disgruntled whining from the losers.
jJack Midknight said: :"5) Unless you plan on altering the Constitution itself, Congress cannot legislate away INHERENT PRESIDENTIAL POWERS, So the wiretapping thing is moot, and Congress certainly didn't "authorize torture."" - The inherent presidential powers does not give this president or any other the authority to disregard the bill of rights. The entire Bush agenda has been to establish an imperial presidency and to attempt to expand presidential powers well beyond anything that the framers intended.
But you act as if I originated each item on that list. I did not.
As I stated at the beginning of the list, each item on the list has been espoused by a Democrat leader and in a few cases by the person with the power to directly make it come true.
For instance, the first item on my list which you attacked as being GOP BS was originated by Charlie Rangel. If the Dems take over the House he will be the Chairman of the "more powerful than most" Ways and Means Committee. In that position, Rangel will have the power to unfund the war in Iraq and Rangel has stated that he will attempt to do so.
All the items on my list came from Democrats and some like Rangel has done it before.
Best regards, Ben
Author "Leading People to be Highly Motivated and Committed"
Presidential power is not unlimited, even in time of war. In Youngstown Sheet & Tube Co. v. Sawyer, the Supreme Court ruled that President Truman could not nationalize the steel mills in time of war, not least because Congress had already denied him the power. Justice Robert Jackson identified three possible scenarios in which a president's actions may be challenged. Where the president acts with explicit or implicit authorization from Congress, his authority "is at its maximum," and will generally be upheld. Where Congress has been silent, the president acts in a "zone of twilight" in which legality "is likely to depend on the imperatives of events and contemporary imponderables rather than on abstract theories of law." Here is the third case:
"3. When the President takes measures incompatible with the expressed or implied will of Congress, his power is at its lowest ebb, for then he can rely only upon his own constitutional powers minus any constitutional powers of Congress over the matter. Courts can sustain exclusive presidential control in such a case only by disabling [p638] the Congress from acting upon the subject. [n4] Presidential claim to a power at once so conclusive and preclusive must be scrutinized with caution, for what is at stake is the equilibrium established by our constitutional system."
Later in the opionion he writes:
"The Solicitor General lastly grounds support of the seizure upon nebulous, inherent powers never expressly granted, but said to have accrued to the office from the customs and claims of preceding administrations. The plea is for a resulting power to deal with a crisis or an emergency according to the necessities of the case, the unarticulated assumption being that necessity knows no law.
Loose and irresponsible use of adjectives colors all nonlegal and much legal discussion of presidential powers. [p647] "Inherent" powers, "implied" powers, "incidental" powers, "plenary" powers, "war" powers and "emergency" powers are used, often interchangeably and without fixed or ascertainable meanings.
The vagueness and generality of the clauses that set forth presidential powers afford a plausible basis for pressures within and without an administration for presidential action beyond that supported by those whose responsibility it is to defend his actions in court. The claim of inherent and unrestricted presidential powers has long been a persuasive dialectical weapon in political controversy. While it is not surprising that counsel should grasp support from such unadjudicated claims of power, a judge cannot accept self-serving press statements of the attorney for one of the interested parties as authority in answering a constitutional question, even if the advocate was himself. But prudence has counseled that actual reliance on such nebulous claims stop short of provoking a judicial test. [n16] [p648]"
And...
"Germany, after the First World War, framed the Weimar Constitution, designed to secure her liberties in the Western tradition. However, the President of the Republic, without concurrence of the Reichstag, was empowered temporarily to suspend any or all individual rights if public safety and order were seriously disturbed or endangered. This proved a temptation to every government, whatever its shade of opinion, and, in 13 years, suspension of rights was invoked on more than 250 occasions. Finally, Hitler persuaded President Von Hindenberg to suspend all such rights, and they were never restored. [n20]"
The full opinion is at: http://www.law.cornell.edu/supct/html/historics/USSC_CR_0343_0579_ZC2.html
The Bill of Rights applies to American citizens ONLY--- and certainly doesn't include enemy non combatants. If an American citizen happens to be on the other end of a phone call, with a suspected terrorist, and one end of the conversation is outside of the country, then that's just too bad.
In such an instance, it isn't the American citizen being scrutinized, he's just caught because he's where he shouldn't be--- on a phone call with a suspected terrorist.
Additionally, it isn't as if these numbers they are tapping are randomly taken from the phone book. These numbers have been vetted, are KNOWN to be used by terrorists because they were found in other arrests, in computers, papers, etc, found whenever a terrorist suspect is arrested.
We aren't monitoring "domestic" calls, we are monitoring INTERNATIONAL calls that either originate or end in the USA.
Precisely why FISA isn't relevant, and neither is the Bill of Rights.
THIS DOES NOTHING MORE THAN SHOW YOU BOUGHT THE BUSH PROPAGANDA HOOK LINE AND SINKER. No free rides here, if you have specific comments make them and support you position.
Sure it does, of course as I said, only one end of the conversation has to be in the USA-- but if that person is a terrorist, an enemy non combatant, it still doesn't apply to them.
the very fact that one end of the call is within the country is what makes it subject to 4th amendment requirements and subject to FISA.
Wrong, incredibly wrong.
In 1967, the Court decided Katz v. United States, 389 U.S. 347. Katz involved the warrantless interception of a conversation held by a criminal defendant in a phone booth. The Court held that the Fourth Amendment applies to such conversations, and that in an ordinary criminal prosecution (subject to many exceptions, as noted above) a warrant is required for wiretap information to be admissible in court. The Court specifically noted, however, that its decision did not apply to situations involving national security:
Whether safeguards other than prior authorization by a magistrate would satisfy the Fourth Amendment in a situation involving the national security is a question not presented by this case.
Five years later, the Court decided United States v. United States District Court, 407 U.S. 297 (1972). This case arose out of a criminal prosecution for conspiracy to destroy government property. (One of the defendants was charged with dynamiting a Michigan office of the C.I.A.) The Court's majority opinion framed the issue as follows:
[This case] involves the delicate question of the President's power, acting through the Attorney General, to authorize electronic surveillance in internal security matters without prior judicial approval.
[Emphasis added.] While acknowledging that American governments had conducted warrantless surveillance in internal security cases "for more than one-quarter of a century," the Court held such surveillance unconstitutional under the circumstances presented.
For the present purpose, the relevant portions of the opinion are those that distinguish the case before the Court from cases involving foreign intelligence gathering:
[T]he instant case requires no judgment on the scope of the President's surveillance power with respect to the activities of foreign powers, within or without this country.
And again:
We emphasize, before concluding this opinion, the scope of our decision. As stated at the outset, this case involves only the domestic aspects of national security. We have not addressed, and express no opinion as to, the issues which may be involved with respect to activities of foreign powers or their agents.
It should be noted, too, that the Court did not hold that in domestic security cases, warrants are always required; it merely rejected the government's assertion of a blanket exemption for all such surveillance.
The third relevant Supreme Court case is Hamdi v. Rumsfeld, 542 U.S. 507 (2004). Hamdi was an American citizen who was captured on the battlefield in Afghanistan and sued the Defense Department, claiming that his indefinite detention as an enemy combatant was unconstitutional. The Court upheld Hamdi's detention, while also ruling that he was entitled to a limited hearing regarding the facts of his detention. The government offered alternative theories in support of Hamdi's detention; the Court's plurality opinion describes them as follows:
The Government maintains that no explicit congressional authorization is required, because the Executive possesses plenary authority to detain pursuant to Article II of the Constitution. We do not reach the question whether Article II provides such authority, however, because we agree with the Government's alternative position, that Congress has in fact authorized Hamdi's detention through the AUMF [the post-September 11 Authorization for the Use of Military Force].
The Court noted that apprehending military combatants is a necessary incident of the use of military force:
We conclude that detention of individuals falling into the limited category we are considering, for the duration of the particular conflict in which they were captured, is so fundamental and accepted an incident to war as to be an exercise of the "necessary and appropriate force" Congress has authorized the President to use.
Thus, neither the language of the Constitution nor the Supreme Court's jurisprudence can justify a claim that the NSA program is illegal. While the Court has never specifically ruled on the issue, its decisions are entirely consistent with the administration's view that the President has the inherent constitutional authority to obtain foreign intelligence information through warrantless searches. We turn now to the decisions of the federal Courts of Appeal.
This specific question was first addressed by the Fifth Circuit in United States v. [Cassius] Clay, 430 F.2d 165 (5th Cir. 1970). In the course of its opinion rejecting defendant's claim that his conviction was based on information obtained from illegal wiretaps, the court wrote:
The fifth wiretap was not disclosed to defendant because the District Court found that the surveillance was lawful, having been authorized by the Attorney General, for the purpose of obtaining foreign intelligence information. The Supreme Court has not yet decided whether electronic surveillance for the purpose of obtaining foreign intelligence information is constitutionally permissible [citation omitted], though Mr. Justice White has expressed the view that such surveillance does not violate the Fourth Amendment. [citation omitted]
We…discern no constitutional prohibition against the fifth wiretap. Section 605 of Title 47, U.S.C., is a general prohibition against publication or use of communications obtained by wiretapping, but we do not read the section as forbidding the President, or his representative, from ordering wiretap surveillance to obtain foreign intelligence in the national interest.
In 1974, the Third Circuit decided United States v. Butenko, 494 F.2d 593 (3rd Cir. 1974), where the defendant was convicted of espionage. The court wrote:
In sum, we hold that, in the circumstances of this case, prior judicial authorization was not required since the district court found that the surveillances of Ivanov were "conducted and maintained solely for the purpose of gathering foreign intelligence information."
Three years later, the Ninth Circuit decided United States v. Buck, 548 F.2d 871 (9th Cir. 1977), a firearms prosecution. The court said:
Foreign security wiretaps are a recognized exception to the general warrant requirement….
In 1980, the Fourth Circuit decided United States v. Truong, another criminal prosecution that arose out of the defendant's spying on behalf of the Socialist Republic of Vietnam. The case squarely presented the issue of the executive branch's inherent power to conduct warrantless surveillance for national security purposes:
The defendants raise a substantial challenge to their convictions by arguing that the surveillance conducted by the FBI violated the Fourth Amendment and that all the evidence uncovered through that surveillance must consequently be suppressed. As has been stated, the government did not seek a warrant for the eavesdropping on Truong's phone conversations or the bugging of his apartment. Instead, it relied upon a "foreign intelligence" exception to the Fourth Amendment's warrant requirement. In the area of foreign intelligence, the government contends, the President may authorize surveillance without seeking a judicial warrant because of his constitutional prerogatives in the area of foreign affairs.
The court agreed with the government's position:
For several reasons, the needs of the executive are so compelling in the area of foreign intelligence, unlike the area of domestic security, that a uniform warrant requirement would, following [United States v. United States District Court, 407 U.S. 297 (1972)], "unduly frustrate" the President in carrying out his foreign affairs responsibilities. First of all, attempts to counter foreign threats to the national security require the utmost stealth, speed and secrecy. A warrant requirement would add a procedural hurdle that would reduce the flexibility of executive foreign intelligence activities, in some cases delay executive response to foreign intelligence threats, and increase the chance of leaks regarding sensitive executive operations.
The court held that warrantless searches for foreign intelligence purposes are constitutional, as long as the "object of the search or the surveillance is a foreign power, its agent or collaborators," and the search is conducted "primarily" for foreign intelligence reasons.
The state of the law was summed up by the Second Circuit in United States v. Duggan, 743 F.2d 59 (1984), a terrorism case in which the court, among other rulings, upheld the constitutionality of the Foreign Intelligence Surveillance Act (FISA), which was adopted in 1981. The court wrote:
Prior to the enactment of FISA, virtually every court that had addressed the issue had concluded that the President had the inherent power to conduct warrantless electronic surveillance to collect foreign intelligence information, and that such surveillances constituted an exception to the warrant requirement of the Fourth Amendment.
Finally, in 2002, the United States Foreign Intelligence Surveillance Court of Review decided Sealed Case No. 02-001. This case arose out of a provision of the Patriot Act that was intended to break down the "wall" between law enforcement and intelligence gathering. The Patriot Act modified Truong's "primary purpose" test by providing that surveillance under FISA was proper if intelligence gathering was one "significant" purpose of the intercept. In the course of discussing the constitutional underpinnings (or lack thereof) of the Truong test, the court wrote:
The Truong court, as did all the other courts to have decided the issue, held that the President did have inherent authority to conduct warrantless searches to obtain foreign intelligence information. It was incumbent upon the court, therefore, to determine the boundaries of that constitutional authority in the case before it. We take for granted that the President does have that authority and, assuming that is so, FISA could not encroach on the President's constitutional power. The question before us is the reverse, does FISA amplify the President's power by providing a mechanism that at least approaches a classic warrant and which therefore supports the government's contention that FISA searches are constitutionally reasonable.
That is the current state of the law. The federal appellate courts have unanimously held that the President has the inherent constitutional authority to order warrantless searches for purposes of gathering foreign intelligence information, which includes information about terrorist threats. Furthermore, since this power is derived from Article II of the Constitution, the FISA Review Court has specifically recognized that it cannot be taken away or limited by Congressional action.
That being the case, the NSA intercept program, which consists of warrantless electronic intercepts for purposes of foreign intelligence gathering, is legal.
1. The pre-1978 cases you cite are all obsolete. Funny that those cases found the referenced wiretaps ILLEGAL (although they are irrelevant to your case anyway).
2. Hamdi is irrelevant. I guess you just threw it in there so that you could mention Article II of the constitution, huh?
3. Truong Dinh Hung is no help to you either. The wiretaps referenced were pre-FISA. The cases cited in that brief refer to surveillance conducted entirely overseas, where no party is in the US.
4. The "inherent authority" defense was thrown out in court in August.
You studiously hid from my previous post, citing the Youngstown Sheet & Tube Co. v. Sawyer case. Since the ice you are skating on is so thin (you know, the whole "inherent authority" mantra), let me treat you to a couple of more quotes from Justice Jackson:
"No doctrine that the Court could promulgate would seem to me more sinister and alarming than that a President whose conduct of foreign affairs is so largely uncontrolled, and often even is unknown, can vastly enlarge his mastery over the internal affairs of the country by his own commitment of the Nation's armed forces to some foreign venture.... [T]he Constitution did not contemplate that the title Commander in Chief of the Army and Navy will constitute him also Commander in Chief of the country... and its inhabitants. He has no monopoly of 'war powers,' whatever they are.... [Congress] empowered to make rules for the 'Government and Regulation of land and naval Forces,' by which it may to some unknown extent impinge upon even command functions."
Here's the URL to the entire opinion. It's a good read:
http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=us&vol=343&invol=579
The fact that a "person" may be an enemy non-combatent or a terrorist does not remove them from the protections of the constitution
Of course it does.
The reasoning in the account you posted can be summarized as follows:
1. The president has certain powers, not all of which have been enumerated.
2. Several cases were considered in court involving wiretapping that occurred before Congress passed FISA. They appear to support of a degree of presidential authority in this area.
3. Therefore, we can assume an "inherent authority" for the warrantless wiretaps.
The counter to that argument can be summarized:
1. Congress also has powers, and they include both a variety of war powers and designation of authorities--and limits of authority--on the president.
2. In response to a legal and constitutional vacuum around wiretapping that, for national security needs, needed to be conducted with a high level of secrecy, Congress passed the Foreign Intelligence Surveillance Act, which provided a secret procedure to be followed for these wiretaps.
3. Once Congress acted, the president was constrained, and any previous claims to "inherent authority" became null and void.
I hope that spells it out for you.
I appreciate your interest in this important issue. I'll leave it at that.
TITLE 50 > CHAPTER 36 > SUBCHAPTER I > § 1801
(i) "United States person" means a citizen of the United States, an alien lawfully admitted for permanent residence (as defined in section 1101 (a)(20) of title 8), an unincorporated association a substantial number of members of which are citizens of the United States or aliens lawfully admitted for permanent residence, or a corporation which is incorporated in the United States, but does not include a corporation or an association which is a foreign power, as defined in subsection (a)(1), (2), or (3) of this section.
*** [ Subsection (a) - excerpt] ***
(a) "Foreign power" means—
(1) a foreign government or any component thereof, whether or not recognized by the United States;
(2) a faction of a foreign nation or nations, not substantially composed of United States persons;
(3) an entity that is openly acknowledged by a foreign government or governments to be directed and controlled by such foreign government or governments;
http://www4.law.cornell.edu/uscode/html/uscode50/usc_sec_50_00001801----000-.html
I did no such thing. It was well constructed reasoning from a university website. If that's not a good enough source for you, tough shit.
I hope that spells it out for YOU.
Another inaccuracy: following the link you provided in another thread one discovers that the website is not at all a university site, but rather powerlineblog.com. It's run by an ultra-right wing, Rush Limbaugh-beloved group of conservatives, including the piece's author, John Hinderaker. As jJack faithfully reported, Hinderaker finds "inherent presidential authority" to engage in virtually any activity imaginable under the "Commander in Chief" clause in Article II of the Constitution. Sadly, the case law he cites involves pre-FISA taps and ignores other decisions that "go the other way."
http://powerlineblog.com/archives/012631.php
The managers of this blog group are fellows of the Claremont Institute, a conservative think tank that challenges environmental regulations, gun control and gay rights. It has been accused of hate speech by the Matthew Shepard foundation.
http://www.mediatransparency.org/recipientgrants.php?recipientID=72
http://www.hatecrime.org/subpages/hatespeech/claremont.html
The NSA program was ruled unconstitutional in August 2006. Several members of Congress have introduced bills that attempt to create a framework to reauthorize the program in a constitutional manner. Citizens should monitor the progress of these bills and stay in touch with their Senators and Representatives when they reconvene to consider these proposals.
what does another thread have to do with this thread ??? *ROFL* hell I offer up all kinds of links, not just to one website *ROFL*
The NSA program was ruled unconstitutional in August 2006
Yeah, by an affirmative action Jimmy Carter appointee, that is sure to be overturned *ROFL*
http://www.gather.com/viewArticle.jsp?articleId=281474976812940
Let me take this opportunity to say that although I have endeavored to counter some of the points you have made, I respect your right to hold those opinions and post them here (however toxic I find them personally). You are obviously intelligent and very much engaged in public policy and care about the direction our country takes. I know that you firmly believe that the President was acting within his powers when authorizing the NSA program. I hold a different opinion. If some of my posts have come off as strident or sarcastic, the intent was not to personally offend or minimize what you have to offer to the discussion. Rather, they represent a limit (for which I apologize) to my rhetorical and diplomatic skills. Have a great day.
I don't mind strident or sarcastic, hell I'm both of those things. and I don't get offended, even if that is what is being attempted. There is no way you can "minimize" my input, as it speaks for itself.
So I can't accept your apology because I don't believe you've done anything "wrong" and I certainly haven't been offended. The only thing I don't understand is why you call my beliefs "toxic."
If you could expand on that a bit, I'd love to see your reasoning, and have a chance to tell you why I think you're just plain wrong, if I believe you are after reading your reasoning.
Think it over if you would, and get back to me as your whims so dictate.
One difficulty I have with conducting a dialog with you is that in a certain cases, when I take the time to research and post a detailed entry, I receive either a flippant or evasive response.
For example, in preparing my Oct 14 entry I looked into the cases you cited and their context. (This was even before I knew the whole thing was penned by the right-winger, nicknamed "Assrocket" by a loving blogosphere audience.) Reread your response if you don't remember it.
On Oct 19, I "outed" Assrocket and got a decidedly muffled response.
None of that goes to toxicity. I goes to talking past each other. Let me suggest this. I'll pose my question and you have at it, if you feel like it. You of course are free to ask me follow-up questions. Let me stipulate that I am NOT an expert on constitutional law. This is just a fun discussion, ok? If I see anything "toxic," I'll let you know. Let's assume this is in the abstract, or refers, you know, to some future president (imagine a left-wing Democrat if that helps).
- Thinking about the US Constitution, where does the President draw his power in wartime, and what are the limits on his power (if any)?
- When cases come up that pose conflicts between various parts of the Constitution, how can they be resolved? Do some Constitutional provisions have priority over others? What role do Congress and the courts have when such conflicts arise?
Thinking about the US Constitution, where does the President draw his power in wartime, and what are the limits on his power (if any)?
Well, one would hope, from presidential precedent. That is, by studying other presidents, in other times, facing similar situations of war, or some other type of "peril" to the nation.
I would suggest Lincoln is a natural place to look, and how he exercised his power, and the "lines" he drew, or erased. I would also suggest of course FDR and Truman, as to finding the proper "line" to walk, and knowing your limits.
However, I would find whoever was the best constitutional authority in the country at any given time might be, and bring them to my office as my personal assistant as well. Someone of course has to be the "decision maker" as Bush is so fond of saying. But that decision maker should never be making decisions ALONE. There should always be a cadre of academics, lawyers, policy makers, etc involved.
In short, the line is self evident, it is the constitution. There is no other line. The limits to a president's authority are pretty clear, and where they aren't, they aren't clear for a REASON. It is left to DISCRETION. One man's gut judgement. After all, that's why he's been elected.
Does this mean there is no line??? I hope not, but everyone is of course free to "interpret" the constitution as they see fit.
When cases come up that pose conflicts between various parts of the Constitution, how can they be resolved?
You're kiddin' right??? (oooops, was that too flip? *smirk*) The constitution spells this out quite clearly. The USSC is the sole arbiter of what the constitution "means."
Do some Constitutional provisions have priority over others?
This isn't a complete, well thought out question, but I'll attempt to answer it anyway. Short answer, NO. Long answer, sure of course--- why??? Human beings are flawed creatures. Why do you think computers break down???
Some people are going to hold the 2nd amendment near and dear to their hearts. Some of course the 1st. What have you.
In addition to this, the vagaries of the constitution we've discussed, the ambiguities and seeming contradictions at times, would seem to indicate an ostensible "caste" system or hierarchy to the codification of our national laws.
Having said all of that, I suppose there was a reason Article I was made Article I and Article II Article II.
What role do Congress and the courts have when such conflicts arise?
This is a redundant question-- congress has no role. It's not for nothing they call it the "supreme" court ya know. *snicker*
I don't have a clear position from you
I think you're kiddin' yourself fella, if I may be so bold. Otherwise you wouldn't have bothered to ask me such pointed questions. You just wanted to see me say it, specifically, and to the point. I don't think I could be any more direct, or offer my opinions with more clarity. If that's a statement of my genetic limitations, so be it.
One difficulty I have with conducting a dialog with you is that in a certain cases, when I take the time to research and post a detailed entry, I receive either a flippant or evasive response.
Yeah, well, hard cheese. *chortle* I get that a great deal, and I'm not sure why (he says smiling from ear to ear.) Look, why should I spend a great deal of time trying to refute something I find ludicrous ??? If your opinion has some merit, I'll bite into it like a ravenous hound, just as I've done here. If you're going to start in with typical liberal dogma, I get BORED, and flippancy becomes the mechanism I used to refrain from falling into a sound sleep.
I'm not sure why anyone would take "time" much less days to compose a "comment" here on gather, I don't even "research" my articles much, I write off the top of my head. I just go with the info I know, and when challenged, I offer up whatever "proof" seems sufficient. Some people will never be placated, or even "believe" what you say, even after you've sourced the entire veracity of your words.
As for the whole "assrocket" stuff, I don't know what to tell you. That information will be found all over the net--- yes, *gasp* even on right winger blogs. So what???
Lastly, I fully understand the "post election agenda" of both parties, which is why I have no choice but to vote a straight republican ticket. I believe my first post to this thread demonstrated this vividly.
I want to thank you for this opportunity to have such a wonderful dialog too (he says with sarcasm dripping from his voice.)
No, really dude--- I dig the moxie. I grok the impulse. I'm glad you sent me a quick eMail and gave me the heads up on the question. The way I see it, from my own perspective is this--- you honor me by doing so.
This is the last point I want to make, HONEST. *guffaw*
If you take a good look back at this entire thread, you'll see all kinds of "name calling." Yet, here we are, talkin' like just a couple of guys because you decided it might be "freaky" to be open and direct with another human being.
This is PRECISELY why I dig gather--- exactly why I loved chat for so long. You get to meet people man, even if you never actually meet them. And though you might not believe it by my tone, I am a people person, I dig INTERACTION.
I'm never surprised by conflict, particularly in the arena of political ideas and philosophy, in fact, it is the main reason I am attracted to such thoughts. I thrive on conflict, and live for the battle, the test of wills, the construction of logic and reason.
FLAME ON ! ! ! ! ! ! and I don't mean as a homosexual *ROFL*
Maybe he can't respond, maybe he doesn't have an answer to refute what I've said. I guess we'll never know, but his silence is telling.
*** Thinking about the US Constitution, where does the President draw his power in wartime, and what are the limits on his power (if any)?
The US Congress holds the power to declare war. Of course, in recent times, when no formal declaration of war has been issued, the President has typically depended on congressional resolutions to define his powers in the legal framework for any substantive conflict. Those resolutions typically circumscribe the presidential authority and set limits.
In addition, the Congress holds the power of the purse, which means that the scale of any conflict is ultimately under the control of Congress.
The President, as Commander in Chief under Article II may obtain additional "war powers" that go beyond what he has during peacetime through congressional action, and those usually end with the end of the conflict. In fact, in the Truman era, Justice Douglas noted: "if the war power can be used in days of peace to treat all the wounds which war inflicts on our society, it may not only swallow up all other powers of Congress but largely obliterate the Ninth and Tenth Amendments as well."
Lincoln, Roosevelt, and Truman are all mentioned in discussions of presidents that may have exceeded their authority in wartime. Both Lincoln (in the habeas corpus situation) and Roosevelt (in the case of the West Coast Japanese evacuation) actually went to Congress for some form of authorization.
Since the 1960's in particular, presidents have been claiming increased war powers, and Congress has passed various laws in an attempt to set time limits and to define emergency powers.
There are certain limits to war powers "hard-coded" into the Constitution. For example, the third amendment explicitly states that "no Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law." Back to Congress again for an authorization. This language has been cited by judges (not just Carter appointees, either, jJack) as evidence that the "Commander in Chief" clause should NOT be interpreted to imply and expansive, all-powerful authority on the part of the President, but rather to suggest that matters as basic as the quartering of troops would require congressional overview and authorization.
In addition to these constraints, the balance of the Constitution and the laws of the US provide many, possibly bothersome, limits on untrammeled presidential authority, even in time of war.
If I understand your response, you see an authority on the part of the President to interpret the Constitution as he sees fit (hopefully with a cadre of advisors, as you point out). While we can only hope that thoughtful consideration precedes any significant presidential action, I think we may be bumping up against one of those "toxic" parting of ways along this line. I simply don't agree that any president can claim the power, independent of Congressional action, to ignore constitutional rights or US laws in time of war (or peace). Undoubtedly there are emergencies where the President must act decisively. For any continuing program or campaign, at the least, congressional authority is required, and the authority itself must be constitutional.
*** When cases come up that pose conflicts between various parts of the Constitution, how can they be resolved?
The wiretapping cases of the 1970's provide an example of how the Congress was able to resolve a constitutional conflict. There were competing needs to conduct national security surveillance (under the cloak of great secrecy), while at the same time protect citizens' fourth amendment rights (against illegal search). Some of the case law that Assrocket cited (quoted in your post) struggled with those conflicts. The FISA of 1978 provided a mechanism for the executive to obtain a search warrant through a secret court, thus meeting fourth amendment protections.
I agree with you that the federal courts have a role in interpreting US Law and the Constitution. Each level of the courts occasionally rule on constitutional issues, just as your favorite District Court Judge did in ruling GWB's NSA wiretapping program unconstitutional and illegal. (Soon to be overturned, says you, I know.)
*** Do some Constitutional provisions have priority over others?
(I tried for open-ended questions--not trying to muck things up, honest.) My answer is similar to yours in many ways. All of them are initially presumed to be effective at all times and in all situations. Then competing interests come up. The long tradition has been to hold individual rights quite high up on the "caste" system. Most Americans recognize this principle. That's why few have a taste for racial profiling, quota systems, Japanese-American evacuation programs, John Poindexter "Carnivore" email-scanning schemes, and on and on. Have I forgotten a recent unconstitutional intrusion on individual rights? Let me think and get back to you.
*** What role do Congress and the courts have when such conflicts arise?
The courts can negate laws that are unconstitutional and can rule that the Executive Branch acted in an unlawful or unconstitutional manner, but only the Congress can create a framework of laws that are both effective and constitutional. OK?
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OK, looks like I see a role for Congress, now polling at 16% popularity, in defining war powers, oversight, and passing laws that allow our government to operate in a constitutionally-sound manner. I am well aware that presidential power, in a branch-of-government sense, has escalated quite a bit in the last few decades. One result is to increase the probability of abuse and seriousness of excesses when they occur.
I've written that Congress is essentially broken right now. Whether it's a movement by the parties to the extremes (both left and right), a lack of civility and statesmanship in Washington, rampant partisanship, or a combination, this dysfunctional, do-nothing Congress can only exacerbate the difficulties of a President attempting to govern (and solve vexing problems at home and abroad). If you think about it, the separation of powers, and the hard work of the branches of government, yoked together, in the best case can pull the country straight ahead with the fewest diversions and excesses.
I have tremendous respect for authority. When it's out of control, our government can be a fearful tyrant. I think that idea bothers me a bit more than it bothers you.
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I mentioned earlier that I'm not a constitutional scholar and now I've proved it. The biggest divide that I see in our positions has to do with how presidential authority is formed and defined. Your idea is way too open-ended for me, pal.
Anyway, freak on. I know I can count on you to hammer me on any point that strikes your fancy.
I asked the questions orginally because I questioned whether, while:
- our positions differed greatly on the legality of the NSA domestic wiretapping program, and
- politically I'm well to the Left of you;
is there, aside from pure partisanship, an understanding of the constitutional roles of the branches of government that influences our viewpoint. Are we looking at the same events through different constitutional "lenses?"
Based on our answers, (admittedly both of which are "first drafts" cranked out in a matter of minutes), I'd say that there is a significant influence from this "lens" in how we view these events, and it may be only casually linked to our politics. You visualize a President who is pretty much in charge of the country, and in time of war doing what he thinks is right to protect and defend us, with his actions under article II holding primacy over other interests. I see a more nuanced set of powers that are set out and constrained by acts of Congress and the letter of the law and the Constitution.
Under other circumstances and under other presidents our views might shift. Nevertheless our understanding of presidential power and its ebb and flow in the process of government is tremendously important, and will continue to be in the foreseeable future. Thanks for contributing to my education in this vital area.
Get roaring drunk.
Shoot unauthorized handgun into air.
Post a Nyaa nyaaa on Gather.
Sleep.
Resume the fight.
Seriously, I heard Alexander Bickel (the lawyer who argued the Pentagon Papers case in front of the SCOUS) speak on the subject. It was argued and decided on the narrowest of points because of the competing rights involved. He has written extensively on the subject and was a nonpareil on-his-feet debater and speaker. In short, the holding on that case is too frail a twig to hang the First Amendment on, as we know from the number of free speech cases filed since. This case was treated as a "free speech case" insofar as it could be, and I do not recall any significant dealing with presidential power. It was a long time ago, so I may have a memory deficit here...
It's been a long time since I read Sawyer. Wasn't that decided a lo-o-ong time ago?